Defendant was found guilty by a jury of two counts of first degree armed robbery (N.J.S.A. 2C:15-1a(2)) and one count of possession of a handgun (N.J.S.A. 2C:39-5b). Concurrent sentences of ten years were imposed on the robbery convictions with a three year and four month mandatory minimum period of parole ineligibility pursuant to N.J.S.A. 2C:43-6c (the "Graves Act"). The weapons conviction was merged into the robbery convictions for sentencing purposes.

The trial court committed reversible error because the trial judge failed to instruct the jury on the lesser included offense of second degree robbery.

Legal Issue #2

The sentence imposed by the lower court was inappropriate because the lower court failed to have a separate hearing to establish that the defendant possessed the weapon for purposes of the Graves Act and this issue was never submitted by way of instruction to the jury.

Legal Issue #3

The trial judge committed reversible error when he instructed the jury that the appellant could be found to have constructive possession of the gun with the co-defendants. (Not Raised Below).

The State accepts defendant's first two contentions and asserts:

Point I -- The State agrees that the trial court erred in refusing to charge the jury ...

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